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Top court to decide if common-law spouses have right to alimony and property

The Supreme Court of Canada next Thursday is expected to decide whether common-law spouses have the same rights as married couples to support and sharing of property after a break-up.

By Tracey TylerLegal Affairs Reporter

Thu., Jan. 12, 2012

They’re known as “de facto spouses.” Partners in a paperless marriage. Or, in this case, plain old Eric and Lola.

But there’s almost nothing ordinary about the tale of a 51-year-old Quebec billionaire businessman and a former Brazilian model, whose messy legal battle could change life for millions of Canadian couples.

Their case, which reaches the Supreme Court of Canada next Thursday, is expected to decide whether common-law spouses have the same rights as married couples to support and sharing of property after a break-up.

While the case is likely to have its greatest impact in Quebec, legal experts predict that if Lola succeeds in her landmark challenge, eight other provinces and territories that deny property rights to unmarried spouses, including Ontario, will be forced to rethink their legislation.

As a starting point, common-law spouses should have the right to both alimony and an equal share in property, argue lawyers for the Women’s Legal Education and Action Fund (LEAF), an intervenor in the case.

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“Equality requires that all spousal relationships have the same essential ground rules and basic protections,” said Joanna Birenbaum, LEAF’s director of litigation.

That’s because in any spousal relationship, the partner who spends the most time caring for children, usually a woman, ends up economically disadvantaged. LEAF contends; whether they were married or living together, they have the same needs following a break-up.

While she admits her opulent lifestyle is far from the norm, Lola says she’s fighting on behalf of all Canadian women.

Dubbed Eric and Lola by the Quebec media after a publication ban was imposed on their names, they met in 1992 when she was 17 and he was 32. During seven years together, they had three children. She pushed for marriage; he said it wasn’t his cup of tea.

He provides $35,000 a month in child support and pays for a cook, two nannies and a driver.

She is seeking a $50 million lump sum payment and $56,000 a month in spousal support.

Looming over the case is a 2002 decision by the Supreme Court involving Susan Walsh, a Nova Scotia woman who sought a share of her late common-law husband’s assets. In that case, the court’s 8-1 majority upheld a section of Nova Scotia’s Matrimonial Property Act, which gives only married people a share in a partner’s property.

The court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.

LEAF argues it is time to revisit the Walsh decision, saying the court in 2002 did not have the benefit of social science research that shows when people move in together, they aren’t motivated by legal considerations.

In fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.

Quebec has a higher proportion of couples living together than anywhere else in Canada — about 34 per cent. But under Quebec’s Civil Code, they have no rights or obligations.

Lola challenged the constitutionality of that regime.

In 2010, she won a partial victory when the Quebec Court of Appeal ruled that denying support to unmarried spouses violates guarantees of equality under the Canadian Charter of Rights and Freedoms — a decision that Eric and the Quebec government hope to reverse.

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